Rabbar Razak P. and Others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 24TH DAY OF JULY 2019 / 2ND SRAVANA, 1941** ## **Crl.MC.No.2441 of 2019** **AGAINST CC NO.611/2017 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-I, KOZHIKODE** **CRIME NO.1227/2016 OF Chevayur Police Station, Kozhikode** ## **PETITIONERS / ACCUSED 1 TO 5:** - **1 RABBAR RAZAK.P., AGED 35 YEARS S/O. RAZAK P., FATHIMA MANZIL HOUSE, PALLISSERY, KUNNAMANGALAM, KOZHIKODE.** - **2 MUHAMMED SUHAIL K., S/O. NISSAR, KUNNUMMAL HOUSE, AARUMBRAM, PADANILAM, KOZHIKODE.** - **3 SABITH RAHMAN K., S/O. ABDURAHIMAN, KAKKASSERY, TURUR, THALAKADATHUR, MALAPPURAM.** - **4 SALMAN.K.T., S/O. SULAIMAN, KARINHATTUKAYIL HOUSE, AVILORA, KODUVALLY, KOZHIKODE.** - **5 MUHAMMED GAMMAR FAIZAL K., S/O. NOUSHAD, KIZHKKINAL CHALIL HOUSE, PATHIMANGALAM, KUNNAMANGALAM KOZHIKODE.** ## **BY ADV. SRI.V.N.RAMESAN NAMBISAN** ## **RESPONDENTS / COMPLAINANTS:** - **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** - **2 NISSAR C., S/O. MAJEED, PAYYADIMEETHAL HOUSE, MARIKUNNU P.O., KOZHIKODE-673 012.** - **3 NIDAL MAJEED E.T., AGED 22 YEARS, S/O. MAJEED, BLOSSOM,, MARIKUNNU P.O., KOZHIKODE-673 012.** CRL.MC:2441/2019 2 |**4**|**SHAMNAS P.M., AGED 31 YEARS.**| |---|---| ||**S/O. MAMUKOYA, PAYYADIMEETHAL HOUSE,**| ||**MARIKUNNU P.O., KOZHIKODE-673 012.**| |**5**|**SAFVAN K.T., S/O. OBRAHIM KOYA K.T.,**| ||**KIZHAKKE THACHANKODE, P.O., MARIKUNNU,**| ||**KOZHIKODE-673 012.**| ||**BY ADV. SRI.PHILJO VARUGHESE PHILIPS**| ||**SRI. RAMESH CHAND PUBLIC PROSECUTOR**| **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRL.MC:2441/2019 3 ## **ORDER** Invoking the powers of this Court under Section 482 of the Code of Criminal Procedure (“the Code” for short), the petitioners seek to quash the criminal proceedings initiated against them by the 2[nd] respondent herein, which is now pending on the files of the Judicial First Class Magistrate Court-I, Kozhikode as C.C. No.611 of 2017. In the above proceeding, the petitioners face indictment for offences punishable under Sections 143, 144, 147, 148, 323, 324 r/w. Section 149 of the IPC. 2. From the prosecution records, it is discernible that the allegation against the petitioners is that on 4.11.2016 at about 5.30 pm, the accused formed themselves into an unlawful assembly and in prosecution of their common intention, assaulted the party respondents and caused injuries. 3. Heard Sri.V.N.Ramesan Nambisan, the learned counsel appearing for the petitioners, Sri.Phijo Varughese, the learned counsel appearing for respondents 2 to 5, and the learned Public Prosecutor. 4. Sri.Phijo Varughese, the learned counsel appearing for the party respondents, submitted that after much deliberations, the victim has resolved the disputes and differences with the petitioners and he has now decided that the continuance of criminal proceedings is an unwanted exercise. He refers to the affidavit filed by the de facto complainant before this Court and asserts that CRL.MC:2441/2019 4 he has no objection in bringing the prosecution proceedings to a premature termination. He also points out that the injured witnesses, who have been arrayed as respondents 3 to 5, have also filed separate affidavits recording that they have no objection in quashing the criminal proceedings. 5. Sri.Ramesan Nambisan, the learned counsel appearing for the petitioners, urged that in view of the compromise arrived at between the victim and the offenders, the possibility of conviction is bleak and the continuation of the criminal proceedings will only inure to put both the parties to oppression and prejudice. Both sides submit that the wrong is basically private in nature and no public interest is involved. 6. The learned Public Prosecutor, on instructions, submitted that the investigating officer has reported that the petitioners are not involved in any other crimes. It is further submitted that the State has no serious objection in quashing the proceedings in view of the settlement arrived at between the parties. 7. I have considered the submissions advanced and have gone through the records. 8. The factors that are to be borne while exercising powers conferred on this Court by Section 482 of the Code in the context of considering a prayer for quashing criminal proceedings on the basis of resolution of disputes between CRL.MC:2441/2019 5 the offender and the victim have been laid down by the Apex Court in **Gian Singh v. State of Punjab and Anr** . [(2012) 10 SCC 303]; **Jitendra Raghuvanshi and Others v. Babita Raghuvanshi and Another** [(2013) 4 SCC 58]; **Narinder Singh and Others v. State of Punjab and Another** [(2014) 6 SCC 466]; **Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Others v. State of Gujarat and Another** [(2017) 9 SCC 641] and **State of Madhya Pradesh v. Laxmi Narayan and others** , [(2019) 4 SCALE 200]. It was held that the inherent jurisdiction vested in the High Court, as recognized and preserved by Section 482 of the Cr.P.C, is primarily to prevent abuse of the process of court or to secure the ends of justice. The guiding light behind the exercise of inherent power is to do real, complete and substantial justice. It was also held that while examining the prayer for quashing of a non compoundable offence, on the basis of settlement of the dispute between the wrongful doer and the victim, this Court must necessarily consider whether the possibility of conviction is remote and oblique and further as to whether the continuation of the criminal proceedings would lead to oppression and prejudice. The courts were reminded that the antecedents of the accused, possible lack of bona fides, his past conduct, including his earlier abscondance, and as to how he had managed to enter into a compromise with the victim are some of the factors which are to reckoned while exercising this extraordinary power. The Apex Court had also cautioned that this Court, when called upon to exercise the power CRL.MC:2441/2019 6 under Section 482 of the Cr.P.C to bring the criminal case to an end on the basis of settlement, must steer clear of intervention in heinous or serious offences, including those involving mental depravity, as indeed economic offences affecting the financial and economic well being of the State, such as murder, attempt to murder, extortion, forgery, rape, dacoity, financial or economic frauds, cases under Arms Act, etc. Those offences were held as having a tendency to have a serious impact upon the society and continuation of trial thereof is essential due to overriding element of public interest. It was also held that the mere fact that the police have incorporated a grave offence in the FIR or the final report would not be a deterrent if the records reveal that the ingredients of the offence are not made out 9. In the light of the above principles, I have perused the prosecution records. The injuries allegedly inflicted by the petitioners cannot be said to be grave and serious having ingredients of extreme mental depravity. I have also noted the submission of the learned Public Prosecutor that the statements of the victim and the injured have been recorded by the investigating officer and that they have asserted that it is not in their best interest that the prosecution proceedings continue. Having considered the case in hand on the tourchstone of the aforementioned parameters, I am of the view that quashing of proceedings on account of compromise would bring about peace. In a case such as the instant one, even if the prosecution is allowed to continue, it would not serve CRL.MC:2441/2019 7 any purpose as the possibility of conviction is remote and bleak. It can only result in putting the victims and the accused to unwanted oppression and prejudice. Settlement will augur well for the interest of the community and will enable the parties to live in peace and harmony. In the result, this petition is allowed. Annexure-1 final report and all further proceedings pursuant thereto against the petitioners now pending as C.C. No.611 of 2017 on the file of the Judicial First Class Magistrate Court-I, Kozhikode, are quashed. **Sd/RAJA VIJAYARAGHAVAN V., JUDGE** KRJ CRL.MC:2441/2019 8 ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**ANNEXURE 1**|**TRUE COPY OF FINAL REPORT IN C.C. NO. 611**| ||**OF 2017 ON THE FILE OF THE COURT OF THE**| ||**JUDICIAL FIRST CLASS MAGISRATE-1,**| ||**KOZHIKODE.**| |**ANNEXURE 2**|**TRUE COPY OF AFFIDAVIT DATED 2.3.2019 SWORN**| ||**TO BY RESPONDENT NO.2.**| |**ANNEXURE 3**|**TRUE COPY OF AFFIDAVIT DATED 2.3.2019 SWORN**| ||**TO BY RESPONDENT NO.3.**| |**ANNEXURE 4**|**TRUE COPY OF AFFIDAVIT DATED 2.3.2019 SWORN**| ||**TO BY RESPONDENT NO.4.**| |**ANNEXURE 5**|**TRUE COPY OF AFFIDAVIT DATED 16.3.2019**| ||**SWORN TO BY RESPONDENT NO. 5**|